79 Mich. 430 | Mich. | 1890
This is an action brought upon a promissory note reading as follows:
“$1,250.00. Dec. 18, 1885.
“For value received, I hereby promise to pay George Steers or bearer twelve hundred and fifty dollars on or before the 18th day of September next, with interest.
* “ Sidney Stearns.
“H. A. Holmes.
“A. E. Stearns.
“ A. J. Holmes.”
There were two indorsements of payments on the same, —$155, January 4, 1886, and $100 November 19, 1887. These payments were made by Sidney Stearns.
The defendant Andrew J. Holmes alone pleaded to the declaration. His plea was the general issue, under which he gave notice that, if he ever signed the note, he did so at plaintiff’s request, after the same had been executed and delivered by his co-defendants, and without their
Sidney Stearns and A. E. Stearns were served with process, and defaulted. Hiram A. Holjnes appeared by attorney, but did not plead. No default for not pleading was entered against him. Upon a trial in the Kalamazoo circuit court, before a jury, Andrew J. Holmes alone defending, verdict was rendered and judgment entered against all of the defendants for $1,365.34.
The first objection is that the judgment is irregular and void as against all of the defendants, for the reason that the default of the defendants A. E. Stearns and Sidney Stearns was taken irregularly, — no affidavit being filed that no plea had been entered or received by plaintiff or his attorneys, — and for the further reason that no default had been entered against the defendant Hiram A. Holmes. The defendants Stearns appeared generally, by the same attorneys who defended the suit for Andrew J. Holmes, and who also appeared for Hiram A. Holmes. They were defaulted December 10, 1888, and the default was made absolute Jung 31, 1889. Failure to file an affidavit for default cannot be'taken advantage of on error. Leonard v. Woodward, 34 Mich. 514. See, also, Elliott v. Farwell, 44 Mich. 186 (6 N. W. Rep. 334); Bogue v. Frentis, 47 Id. 134, 136 (10 N. W. Rep. 136).
As to the defendant Hiram A. Holmes, he was plainly in default for not pleading. No objection was made to going to trial because he had not been defaulted. He had appeared, and was before the court. He could have been defaulted at any time for six months before the trial. No objection was made as to the shape of the record as against him until the case was ready to be submitted to the jury. Under the circumstances, we think his default should have been entered nunc pro tunc, and we are authorized to do so now, to save the verdict and
The note in suit was given in payment for cows, fodder, and other things then being upon a farm owned by Judge Sherwood, near the city of Kalamazoo. The claim of the plaintiff was that the defendant Sidney Stearns, who purchased the property, agreed to have the other three defendants sign the note with him, and that all of them did sign the same before the property changed hands; and the note was drawn at Judge Sherwood’s house on the evening of the day of its date, and was there signed by Sidney Stearns, and that the other three defendants signed it the next morning, and that he did not turn over the property until the note was signed by all of them.
The defendant Andrew J. Holmes contended, and gave evidence tending to show, that he had no arrangement with the other defendants to sign the note; that he did not sign it until it had been signed by the others, and delivered to plaintiff, and not until defendant Sidney Stearns had been in possession of the property for several days.
It appeared from the testimony of both plaintiff, and defendant Andrew J. Holmes, that the plaintiff was in possession of the note at the time said Holmes signed it, and presented it to Holmes for his signature. The evidence failed to show that there was any express agreement between said Holmes and the other defendants that he should sign the note; but the plaintiff testified that Sidney Stearns told him that Holmes would sign it, and that he informed Stearns that he would not part with his property until Holmes did sign. Stearns let him have the note to get Holmes’ signature. Plaintiff took the
“Your brother, I suppose, spoke to you about signing this note.”
Holmes made no reply, but took the note and signed it.
The court fairly submitted the two theories to the jury. He instructed them, as follows:
“Now, if you find — to make it more specific — that, when this note was drawn and signed by Sidney Stearns, there was no understanding and agreement on the part of Dr. Holmes with the other defendants that he was to Bign the note with them, and that the payee did not accept the note as signed, but merely took it into his possession, temporarily, in order to procure the other signers, and that he did not turn over this personal property to Sidney Stearns until after all the others had signed it, then your verdict should be for the plaintiff.”
“Now, on the other hand, as I have indicated to you, gentlemen, if this note was made out and signed by Sidney Stearns, or Sidney Stearns and either of the two next defendants, and passed over to Steers as a fully-executed note, and he thereupon delivered over the personal property which this note was given for to Mr. Sidney Stearns, and he took possession of it, and then after- • wards Mr. Steers carried this note to Dr. Holmes, — A. J. Holmes, — and he signed his name to it, that signature was utterly void. It was without consideration, and it would be of no consequence; and your verdict should be for the defendant.”
To support the contention of the defendant Andrew J. Holmes, Sidney Stearns testified in his behalf that he never asked Holmes to sign the note, and never expected that he would sign it, nor did Holmes ever promise him that he would do so; that he did not know until six months afterwards that it was so signed. To meet this, the plaintiff and Judge Sherwood were permitted to testify to what took place at the latter’s house when the note was drawn, — Sidney Stearns being present and sign
1. On the ground that the defendant Andrew J. Holmes was not present, and could not be bound by what took place there.
2. Because Judge Sherwood was unable to give the exact language of the parties, but was allowed to state that he knew that it was talked there that others were to sign the note, and he understood from the conversation there that the parties whose names appear upon the note were to sign it, although he could not state the exact words used, but only the substance of the talk.
Upon plaintiff’s theory of the case, he had a right to show all that took place at the inception of this note, and what the arrangement was between him and Sidney Stearns as to the other signers, as well as to the transfer of the property. The fact that Andrew J. Holmes was not present when this agreement between Stearns and plaintiff was made was immaterial. If Holmes signed this note as surety or joint maker before the property passed from plaintiff to Stearns, and plaintiff relied upon his signature, and would not have parted with his property without it, the consideration for such signing was sufficient, even though Holmes signed the note at the request of plaintiff, and not of Sidney Stearns. The question in issue was- whether or not this signature of Holmes was obtained before the delivery of the note, and the passing of the property; and, to show this, evidence of what took place at the making of the note, and the arrangement as to who should sign it, was competent and material as bearing upon the probabilities of the transaction.
We are also satisfied that no error was committed in permitting Judge Sherwood to state the substance of his
“I recollect Steers saying that the note — [here the witness was interrupted by an objection, and after such interruption he continues:] But this was that night there [referring to the transaction at his house], Mr. Steers says: ‘No; I didn’t take any mortgage, but the note is to be signed by these parties,’ — as I now recollect the substance of what was said.
“Q. All these parties whose names are on that note?
“A. Yes, sir; I understood that these men were to sign this note.”
One of the signers to this note — Hiram A. Holmes, a-brother of Andrew J. Holmes — was at the house of Judge Sherwood the evening the note was drawn up. He gave testimony on behalf of the defendant. It was claimed by the plaintiff that Hiram told him that his brother Andrew J. would sign the note; and Andrew J. Holmes testified that Hiram asked him to sign the note, and he told him he would see about it, but did not promise to do so. Hiram A. Holmes is the son-in-law of Sidney Stearns, and was interested and active in bringing about the trade. He testified that he did not sign the note until -four or five days after its date, and that Andrew J.’s name was not on the note at that time, and that Andrew J. never agreed to sign the note, to his knowledge. He was asked
“And I wish to caution you, further, that the statement made by H. A. Holmes and Sidney Stearns, or whoever those statements were made by, at Judge Sherwood's, that A. J. Holmes was to sign the note, are no evidence whatever against A. J. Holmes. Those statements were introduced only for a specific purpose. These parties had testified upon their examination that A. J. Holmes made no süch agreement whatever; and A. J. Holmes also testified that he made no such agreement. It was allowed to be put in evidence that they had said otherwise before Judge Sherwood, but this was simply as bearing upon the credibility to be given to their testimony. It is no evidence against A. J. Holmes that he did agree to sign this note, and you should not consider it for any such purpose.''
The testimony of what took place at Judge Sherwood's house at the time of the making of the note was, as before said, admissible, and what was said there by those present who signed the note, as bearing upon the understanding and agreement upon which the note was taken, and as tending, also, to show whom the plaintiff expected to sign the note before it was to be taken by him as a completed paper, and before the property was to pass.
Andrew J. Holmes was asked upon cross-examination when he was first called upon in regard to this note. He answered as follows:
He was then asked how much he promised to pay for it. This was objected to as immaterial. The question was permitted, and he answered that he offered to give-$800. On redirect examination, he further testified that he offered this sum as a compromise'or settlement of the-claim, as he did not want to go into court, and preferred to settle the - matter in some other way. The court instructed the jury in relation to this testimony as follows:
“There is one other subject that I will call your attention to. That is with regard to the offer which it is claimed he [A. J. Holmes] made, to pay $800 for the-note. If you find that that offer was made under such circumstances, — was not in such a way that it was an admission on the part of Dr. Holmes that he owed the note, or a part of it, — you may consider it then as bearing upon the question of whether he ever became originally liable upon it. It would not be conclusive evidence, then, that he ever became liable upon it. It would be for you to receive it, and consider it for what it is worth as bearing upon the question whether he became originally liable upon the note. If, however, you find he made the offer simply to settle the matter, without recognition that he was liable upon the note, then you should not consider it for any purpose.”
There was no error in the allowance of this question, or in the charge of the court in relation to the use of' the testimony by the jury.
It may further be said that the case was put to the jury on a basis altogether too favorable to the defendant Andrew J. Holmes. Upon the evidence in the case, coupled with his own showing, he was undoubtedly liable-upon this note. It was plain enough that the bargain-
The judgment is affirmed, with costs.